Autovest v. Agosto

Office of the
New Mexico
Director Compilation
Commission
2025.02.05
'00'07- 09:03:32
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2025-NMSC-001

Filing Date: August 15, 2024

No. S-1-SC-38834

AUTOVEST, L.L.C.,

Plaintiff-Petitioner,

v.

DEBRA M. AGOSTO and
DEBBIE M. AGOSTO,

Defendants-Respondents,

and

AUTOVEST, L.L.C.,

Plaintiff-Petitioner,

v.

MARIA ESTRADA,

Defendant-Respondent,

and

FRANK RIVERA, JR.,

Defendant,

and

AUTOVEST, L.L.C.,

Plaintiff-Petitioner,

v.
DEBRA M. AGOSTO and
DEBBIE M. AGOSTO,

Defendants-Respondents.

ORIGINAL PROCEEDING ON CERTIORARI
Mary W. Rosner, District Judge

Jenkins & Young, P.C.
Jody Jenkins
Lubbock, TX

Simmonds & Narita LLP
R. Travis Campbell
San Francisco, CA

for Petitioner

Hanratty Law Firm
Kevin J. Hanratty
Artesia, NM

Kenneth L. Beal, P.C.
Kenneth L. Beal
Las Cruces, NM

for Respondents

Rodey, Dickason, Sloan, Akin & Robb, P.A.
Edward R. Ricco
Albuquerque, NM

for Amicus Curiae National Creditors Bar Association

OPINION

THOMSON, Chief Justice.

{1} In these consolidated appeals, we affirm the Court of Appeals that Chapter 37’s
partial payment rule does not revive the four-year statute of limitations for breach of
contract actions under Section 2 of New Mexico’s Uniform Commercial Code (UCC).
See Autovest, L.L.C. v. Agosto, 2021-NMCA-053, ¶ 1, 497 P.3d 642; NMSA 1978, §55-
2-725(1) (1961). We also conclude that Autovest abandoned its argument that New
Mexico should adopt a common law partial payment rule because it failed to raise the
issue in its direct appeal from the district court to the Court of Appeals.
I. INTRODUCTION

{2} The financial journeys of Debra and Debbie Agosto, and Maria Estrada
(collectively, Respondents) share a beginning familiar to many New Mexicans, the
purchase of a car. 1 A buyer trades in their old car and signs a six-year finance
agreement borrowing more than $23,000 for a three-year-old sedan worth $11,790. The
total amount financed includes the accrued annual interest (17%) and an array of
finance charges and associated fees. One of those fees is a life insurance policy funded
by and rolled into the loan, providing the bank, as the lender and primary beneficiary,
the entire value of the contract.

{3} Over two years, some payments are timely, and some are not. The bank invokes
the agreement’s acceleration clause, requiring the buyer to immediately repay the entire
balance or risk losing the car; the buyer chooses to voluntarily return the vehicle. Within
two months of repossession, the sedan is sold at auction for $3,800, representing a
67.8% depreciation in two and a half years. The auction proceeds are applied to the
balance of the debt, but a deficiency of almost $9,000 remains. The bank sells and
assigns its interest to a third-party debt collector like Autovest. The collection calls
continue, and the buyer approves a draw from their account in a good faith effort to pay
down the deficiency.

{4} More than five years after default and eight years after purchasing the sedan, the
debt’s new owner brings an action to recover the remaining deficiency. Respondents
argue that the UCC bars the claim because the UCC specifies a four-year statute of
limitations for transactions involving the sale of goods. Section 55-2-725(1). A statute of
limitations establishes a maximum time frame for a party to bring a suit. It prevents the
disposition of aging claims so that a case is brought before evidence is lost and
memories fade. Because more than four years have passed, Respondents contend that
the Court of Appeals correctly dismissed the creditor’s lawsuit.

{5} Autovest maintains that the suit was timely because Defendant’s payment
revived the statute of limitations under New Mexico’s partial payment rule, which renews
the four-year limitation period whenever a debtor remits any amount toward an
outstanding balance. See NMSA 1978, § 37-1-16 (1957) (“Causes of action founded
upon contract shall be revived by the making of any partial or installment payment.”).
The two district courts reached different conclusions on revival by partial payment, albeit
under theories not at issue in this appeal. See Agosto, 2021-NMCA-053, ¶ 1.

{6} The Court of Appeals consolidated the cases and rejected Autovest’s argument
that the partial payment rule applied to this transaction, relying on a plain-language
interpretation of Section 37-1-17. Agosto, 2021-NMCA-053, ¶ 1 n.1, ¶¶ 12-13; NMSA
1978, Section 37-1-17 (1880). Section 37-1-17 functions as an exclusion provision that

1The Court of Appeals, id. ¶ 1 n.1, consolidated three appeals from two district court cases with common
issues: A-1-CA-37459 and A-1-CA-37969 (appealing from Autovest, L.L.C. v. Debra M. Agosto & Debbie
M. Agosto, D-307-CV-2014-01148) and A-1-CA-37483 (appealing from Autovest, L.L.C. v. Maria Estrada
& Frank Rivera Jr., D-307-CV-2013-00164). Because the facts of both cases share many commonalities,
we review only the facts of the Agostos.
prohibits the application of all of Chapter 37’s terms, including the partial payment rule,
when another statute establishes a different limitation period. Section 37-1-17 (“None of
the provisions of this chapter shall apply to any action or suit which, by any particular
statute of this state, is limited to be commenced within a different time.” (emphasis
added)). The Court of Appeals noted that Chapter 37 establishes a default statute of
limitations period of six years for contracts in writing. Agosto, 2021-NMCA-053, ¶ 12;
NMSA 1978, § 37-1-3(A) (2015). Because the UCC mandates a different time of four
years, the Court held that the exclusion provision “render[ed] the [partial payment rule]
inapplicable.” Agosto, 2021-NMCA-053, ¶ 12; Section 37-1-17.

{7} Fifteen years after the buyer purchased the sedan, Autovest appealed to this
Court, arguing that Section 55-2-725(4) of the UCC (the tolling provision) overrides the
mandatory prohibition of the exclusion provision. 2 See id.; NMSA 1978, Section 55-2-
725(4) (1961). (“This section does not alter the law on tolling of the statute of
limitations.” (emphasis added)). We disagree. The exclusion provision unambiguously
precludes the application of the partial payment statute. Further, the UCC’s declaration
that its terms do not alter existing tolling law does not operate to supersede the
Legislature’s mandatory exclusion of Chapter 37. It does the opposite; it restricts the
reach of the UCC’s provisions rather than extending their command.

{8} Accepting Autovest’s argument would restart the statute of limitations whenever
a consumer makes a partial payment. Reviving the limitation period would allow a debt
collector to file a lawsuit regardless of how many years have passed since default, even
if the lawsuit would normally be time-barred. Joslin v. Gregory, 2003-NMCA-133, ¶ 14,
134 N.M. 527, 80 P.3d 464 (“A partial payment will renew a barred debt when such
payment is made under circumstances that warrant a clear inference that the debtor
acknowledges and is willing to pay a further indebtedness.” (text only) 3 (emphasis
added) (quoting II Calvin W. Corman, Limitation of Actions § 9.12.3 at 93 (1991))). This
would sanction the eternal revival of claims such that the specter of zombie debt rising
from the grave would forever haunt consumers. There would be no end to the
underinformed debtor’s financial anguish.

{9} This is not to suggest that Respondents should not answer for their obligations
under the financial agreement. They should. But where the Legislature’s language is
unambiguous and mandatory, as it is in the exclusion provision, we are compelled to
enforce its terms. We hold that Section 37-1-16’s partial payment rule does not override
or otherwise supersede the mandatory terms of the exclusion provision. We, therefore,

2Autovest also asks us to adopt a common-law partial payment rule to supplement Chapter 37’s statutory
provision. However, because Autovest failed to adequately raise the issue at the Court of Appeals, we are
precluded from reaching the question on certiorari review. See State v. Harbison, 2007-NMSC-016, ¶ 25,
141 N.M. 392, 156 P.3d 30 (failing to raise an issue in his direct appeal from the district court to the Court
of Appeals, the defendant abandoned it and cannot resurrect it for the first time on a writ of certiorari to
this Court); cf. Rule 12-502(C)(2)(e) NMRA (requiring parties to demonstrate where they presented
questions to the Court of Appeals).
3The “text only” parenthetical indicates omission of nonessential punctuation marks⸺including internal
quotation marks, ellipses, and brackets⸺that are present in the text of the quoted source, leaving the
quoted text otherwise unchanged.
affirm the Court of Appeals and remand each case to its respective district court to
amend the judgment consistent with our holdings.

II. LEGAL ANALYSIS

{10} To determine whether the partial payment provision applies to a written contract
for the sale of goods, we must consider the interplay between two statutes: Chapter
37’s exclusion provision and the UCC’s tolling provision. Our Legislature drafted the
exclusion provision to prohibit courts from applying Chapter 37’s terms whenever a
statute outside of the Chapter establishes a different limitation period. See § 37-1-17.
The Court of Appeals held that “by its plain terms, [the exclusion provision] renders [the
partial payment provision] inapplicable.” Agosto, 2021-NMCA-053, ¶ 12. Autovest
acknowledges that the plain language of the exclusion provision precludes the
application of the partial payment rule but argues that the tolling provision makes their
collection efforts timely. Under Autovest’s interpretation, the tolling provision’s statement
that the UCC “does not alter the law on tolling of the statute of limitations” overrides the
exclusion provision and preserves the partial payment rule such that it applies to the
sale of goods.

{11} We settle this question of law through statutory interpretation, which we review
de novo. Cooper v. Chevron U.S.A., Inc., 2002-NMSC-020, ¶ 16, 132 N.M. 382, 49 P.3d
61 (“The meaning of language used in a statute is a question of law that we review de
novo.”). “In construing a statute, we must ascertain and give effect to the intent of the
Legislature. To accomplish this, we apply the plain meaning of the statute unless the
language is doubtful, ambiguous, or an adherence to the literal use of the words would
lead to injustice, absurdity or contradiction.” Nguyen v. Bui, 2023-NMSC-020, ¶ 15, 536
P.3d 482 (internal quotation marks and citation omitted). Because we are analyzing the
relationship between two statutes, we read the statutes together, presuming “the
legislature did not intend to enact a law inconsistent with existing law. . . . Thus, two
statutes covering the same subject matter should be harmonized and construed
together when possible in a way that facilitates their operation and the achievement of
their goals.” State ex rel. Quintana v. Schnedar, 1993-NMSC-033, ¶ 4, 115 N.M. 573,
855 P.2d 562.

A. The Exclusion Provision Precludes the Application of the Partial Payment
Provision

{12} Our analysis begins with a straightforward application of the exclusion provision’s
unambiguous terms. Noriega v. City of Albuquerque, 1974-NMCA-040, ¶ 8, 86 N.M.
294, 523 P.2d 29 (holding that the exclusion provision “is unambiguous; there is no
room for construction”). Chapter 37’s exclusion provision states, “None of the
[preceding] provisions of this chapter shall apply to any action or suit which, by any
particular statute of this state, is limited to be commenced within a different time.” 4

4While Section 37-1-17 remains unamended since its 1880 enactment, the unofficially inserted term
“preceding” first appeared in this statute in the official annual NMSA 1978 publication for 1977 and
persisted annually therein through the 2017 annual publication, after which the Compilation Commission
removed this unofficial insertion at the request of the Legislative Council Service. The statute quoted here
Section 37-1-17 (emphasis added). Respondents in both cases entered into a written
agreement for the purchase of a used car. Section 37-1-3(A) establishes the default six-
year statute of limitations for actions arising from a contract in writing. However, when
the contract is for the sale of goods, 5 Section 55-2-725(1) is a particular statute of this
state that provides a different time for bringing a cause of action, four years. Id.
(requiring that breach of contract actions for the sale of goods “be commenced within
four years after the cause of action has accrued”).

{13} Because four years is a different time than six, the exclusion provision is
triggered, precluding the application of all of Chapter 37’s provisions. See § 37-1-17;
compare § 37-1-3(A) (providing a six-year statute of limitation for “contract[s] in
writing.”), with § 55-2-725(1) (establishing a four-year limitation for breach of contract
actions). This includes the partial payment provision that Autovest relies upon. See §
37-1-16. The Legislature’s language aptly summarizes the application of the exclusion
provision to the facts of this case: “None of the [preceding] provisions of this chapter
[including Section 37-1-16’s partial payment provision] shall apply to [Autovest’s] suit
which, by [Section 55-2-725(1) of the UCC], is limited to be commenced within [the]
different time [of four and not six years].” Section 37-1-17.

B. The Legislature Did Not Intend for the UCC’s Tolling Provision to Override
the Mandatory Terms of the Exclusion Provision

{14} Autovest contends that in adopting the model acts of the Uniform Commercial
Code the Legislature intended for the tolling provision, § 55-2-725(4), to override the
exclusion provision. The thrust of Autovest’s position is that the tolling provision
“preserves the law on tolling,” which includes the partial payment provision (emphasis
added). However, Autovest’s sole proof of legislative intent lies not in the Legislature’s
actual language but in a statute of the Legislature’s own design. Autovest’s chosen
verb, preserves, does not exist in the tolling provision. State v. Trujillo, 2009-NMSC-
012, ¶ 11, 146 N.M. 14, 206 P.3d 125 (“We will not read into a statute any words that
are not there, particularly when the statute is complete and makes sense as written.”).

{15} “We begin the search for legislative intent by looking first to the words chosen by
the Legislature and the plain meaning of the Legislature’s language.” State v. Gutierrez,
2023-NMSC-002, ¶ 26, 523 P.3d 560, 566 (text only) (emphasis added) (citation
omitted). The UCC’s tolling provision states, “This section does not alter the law on
tolling of the statute of limitations.” Section 55-2-725(4) (emphasis added). Autovest
asks us to replace does not alter with preserves, an affirmative verb. But the Legislature
chose a negative verb: “not alter.” As this Court has noted, “‘Statutes must be read
according to their grammatical sense.’” State v. Montano, 2020-NMSC-009, ¶ 36, 468
P.3d 838 (quoting Garcia v. Schneider, Inc., 1986-NMCA-127, ¶ 9, 105 N.M. 234, 731
P.2d 377 (emphasis added)). Polarity, the grammatical lexicon associated with
affirmation and negation, matters to this opinion. Preserves is a transitive verb, which

includes brackets on “preceding” to mark as unofficial the persistence of the term for decades before the
bank invoked the acceleration provision and until two years before Autovest’s 2019 filing in the Court of
Appeals.
5There is no dispute that this case involves a sale of goods.
means the subject (the UCC) affirmatively acts on (preserves) a direct object (the law
on tolling). “Alter” is also a transitive verb, so when you negate the verb in this context,
you are restricting the ability of the subject of the sentence (the UCC) to affirmatively act
on (alter) the object (any law on tolling).

{16} The difference between an affirmative (mandatory) injunction and a negative
(prohibitory) injunction exemplifies this concept. The former “is an injunction which
compels some positive action by the person or persons enjoined.” Amkco, Ltd., Co. v.
Welborn, 1999-NMCA-108, ¶ 14, 127 N.M. 587, 985 P.2d 757 (emphasis added), rev’d
in part on other grounds, 2001-NMSC-012, ¶ 12, 130 N.M. 155, 21 P.3d 24. The latter
“‘prohibits a party from taking action and preserves the status quo.’” Ariz. Dream Act
Coal. v. Brewer, 757 F.3d 1053, 1060 (9th Cir. 2014) (emphasis added) (citation
omitted).

{17} Autovest’s view of “preserves” is more synonymous with restores or protects,
verbs that confer a power. But the Legislature explicitly stated that the UCC does not
alter existing tolling law. In this context, the phrase “does not alter” restricts the reach of
the UCC’s provisions rather than extending the statute’s command. Alter means the
following:

To make a change in; to modify; to vary in some degree; to change some
of the elements or ingredients or details without substituting an entirely
new thing or destroying the identity of the thing affected. To change
partially. To change in one or more respects, but without destruction of
existence or identity of the thing changed; to increase or diminish.

See alter, Black’s Law Dictionary (6th ed. 1990); Fleming v. Phelps-Dodge Corp., 1972-
NMCA-060, ¶ 7, 83 N.M. 715, 496 P.2d 1111 (applying the definition of alter from
Black’s Law Dictionary). Thus, to declare that the UCC “does not alter” the law on tolling
means that the tolling provision does not “change” or “modify,” not even “partially,” the
status quo.

{18} The official comments adopted by the New Mexico Legislature reinforce our
reading, affirming that “Subsection (4) . . . does not purport to alter or modify in any
respect the law on tolling of the statute of limitations as it now prevails in the various
jurisdictions.” Section 55-2-725(4) cmt. (emphasis added); First State Bank at Gallup v.
Clark, 1977-NMSC-088, ¶ 5, 91 N.M. 117, 570 P.2d 1144 (“We recognize the Official
Comments to the U.C.C. as persuasive, though they are not controlling authority.”);
Gardner Zemke Co. v. Dunham Bush, Inc., 1993-NMSC-016, ¶ 18 n.2, 115 N.M. 260,
850 P.2d 319 (“‘The[ official] comments are very useful in presenting something of the
background and purposes of the sections, and of the way in which the details and
policies build into a whole. In these aspects they greatly aid understanding and
construction.’” (quoting Karl N. Llewellyn, Why We Need the Uniform Commercial Code,
10 U. Fla. L. Rev. 367, 375 (1957))). When we examine the tolling provision alongside
the commentary, the Legislature’s intent is clear: the UCC does not alter or modify the
law on tolling as it exists in New Mexico, one of the various jurisdictions that has
adopted the uniform acts. See alter, Black’s Law Dictionary (6th ed. 1990).
{19} The language of the UCC’s tolling provision and the official comments prompt
two considerations in determining whether the partial payment rule applies. First, what
is the law on tolling? And second, how does it prevail in New Mexico? The law on tolling
includes common law actions such as equitable tolling. Ocana v. Am. Furniture Co.,
2004-NMSC-018, ¶ 15, 135 N.M. 539, 91 P.3d 58 (“Equitable tolling is a nonstatutory
tolling theory which suspends a limitations period.”). The law on tolling also includes
tolling statutes enacted by the Legislature. See NMSA 1978, § 37-1-10 (1975)
(specifying limitation times on tolling claims for minors and incapacitated persons). For
purposes of this discussion, we assume the partial payment provision is part of the law
on tolling. 6

{20} We next assess how the partial payment provision “now prevails” under New
Mexico law. See § 55-2-725(4) cmt. As discussed in Section II.A, the partial payment
provision applies under New Mexico law as long as the mandatory exclusion provision
is not triggered. The UCC’s tolling provision merely maintains the equilibrium
established in Chapter 37. So, when the exclusion provision does not apply, the partial
payment rule would be available to revive the limitation period. 7 Alternatively, when the
exclusion provision bars the application of the partial payment rule, the UCC guarantees
that its terms leave the rule in its present state: barred. As one treatise put it, “The
[UCC] does not alter non-[UCC] law relating to the tolling of statutes of limitation.” 4B
David Frisch, Lawrence’s Anderson on the UCC § 2-725:136 (3d. ed. 2023). Autovest’s
interpretation violates the statute’s explicit instruction because it forces the UCC’s tolling
law provision to do precisely what the Legislature forbids: to modify and alter the law on
tolling as it now prevails under New Mexico law. 8

{21} Autovest’s interpretation also fails to account for the Legislature’s use of shall in
the exclusion provision. Section 37-1-17 (“None of the [] provisions . . . shall apply.”)
“The word shall is ordinarily the language of command. And when a law uses shall, the
normal inference is that it is used in its usual sense—that being mandatory.” Yedidag v.
Roswell Clinic Corp., 2015-NMSC-012, ¶ 53, 346 P.3d 1136 (text only) (quoting
Anderson v. Yungkau, 329 U.S. 482, 485 (1947)). Our Legislature has recognized that

6Because we hold that the tolling provision does not operate as a statutory override, addressing whether
the partial payment provision is a part of the law on tolling is unnecessary.
7Hamilton v. Pearce, the Washington Court of Appeals case inaptly relied upon by Autovest, is a prime
exemplar of this outcome. 547 P.2d 866 (Wash. Ct. App. 1976). There, the appellate court ruled that a
partial payment statute, similar in form to our own, applied to the sale of goods. Id. at 870; see Wash.
Rev. Code Ann. § 4.16.270 (1877) & § 4.16.280 (1877). Autovest suggests this decision supports the
proposition that our “Legislature intended for New Mexico’s tolling laws to apply to Article 2 claims.” But in
Washington, there was no exclusion provision to bar the application of the partial payment statute. See
Wash. Rev. Code Ann. §§ 4.16.010 to .350 (1974) (Limitation of Actions). Thus, the intermediate court
concluded using the terms of the UCC’s tolling provision that “the UCC statute of limitations . . . did not
alter or modify in any respect the law on the tolling of statutes of limitation, including . . . the partial
payment statute, as it prevails in this State.” Hamilton, 547 P.2d at 870.
8Autovest repeatedly suggests our interpretation renders the tolling provision superfluous. We disagree.
The tolling provision states that Section 2 of the UCC does not alter the law on tolling. As already
discussed, in this section, the law on tolling includes statutory provisions and those common law tolling
principles recognized by New Mexico courts. The tolling provision retains the status quo developed by our
Legislature and courts. A statute is not superfluous solely because it does not operate to achieve a
party’s desired outcome in a particular instance.
shall “express[es] a duty, obligation, [or] requirement.” NMSA 1978, § 12-2A-4(A)
(1997). As the Supreme Court has noted, this obligation is “normally . . . impervious to
judicial discretion.” Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S.
26, 27 (1998). Thus, “‘Shall’ will be given its mandatory meaning, unless there are
indications in the statute that the mandatory reading is repugnant to the manifest intent
of the Legislature.” Tomlinson v. State, 1982-NMSC-074, ¶ 9, 98 N.M. 213, 647 P.2d
415.

{22} Autovest asks us to accept that the negative language of the UCC’s tolling
provision carries the force to override or supersede any and all mandatory provisions
related to tolling law. However, the Legislature’s chosen language and official
comments provide no clear indication of an intent to supersede other statutes. Marbob
Energy Corp. v. N.M. Oil Conservation Comm’n, 2009-NMSC-013, ¶ 22, 146 N.M. 24,
206 P.3d 135 (“It is widely accepted that when construing statutes, ‘shall’ indicates that
the provision is mandatory, and we must assume that the Legislature intended the
provision to be mandatory absent a[] clear indication to the contrary.”). “[W]e presume
the [L]egislature is aware of existing law when it enacts legislation,” Sunwest Bank of
Albuquerque, N.M. v. Nelson, 1998-NMSC-012, ¶ 15, 125 N.M. 170, 958 P.2d 740
(internal quotation marks and citation omitted). We also presume the Legislature would
have “take[n] that law into consideration when enacting new law.” Gutierrez v. Las
Vegas Sch. Dist., 2002-NMCA-068, ¶ 15, 132 N.M. 372, 48 P.3d 761. This is especially
true here because this Court had already interpreted the exclusion provision prior to
legislative adoption of the UCC. See, e.g., Natseway v. Jojola, 1952-NMSC-104, ¶ 16,
56 N.M. 793, 251 P.2d 274. One would typically expect an explicit statutory statement,
like a “notwithstanding” clause, to signal an intent for the statute to prevail over all
others. Morningstar Water Users Ass’n v. N.M. Pub. Util. Comm’n, 1995-NMSC-062, ¶
48, 120 N.M. 579, 904 P.2d 28 (“Generally, a ‘notwithstanding’ clause serves to prevent
the matters following the clause from being frustrated by other statutory provisions.”);
see, e.g., Public Employee Bargaining Act, NMSA 1978, § 10-7E-3 (2020) (“In the event
of conflict with other laws, the provisions of the Public Employee Bargaining Act shall
supersede other previously enacted legislation and rules . . . .” (emphasis added)).

{23} The absence of definitive language is even more noteworthy given the
Legislature’s use of “supersede” and “notwithstanding” provisions throughout the UCC.
NMSA 1978, § 55-1-108 (2005) (stating that Article 1 of the UCC “supersedes the
federal Electronic Signatures in Global and National Commerce Act”); NMSA 1978, §
55-3-102(c) (1992) (declaring that regulations of the federal reserve system supersede
conflicting regulations in Article 3 of the UCC); NMSA 1978, § 55-2A-302 (1992) (noting
that each provision of Article 2A applies “notwithstanding any statute or rule of law”).
Here, the UCC’s tolling provision states only what the UCC cannot do: alter the existing
law on tolling. The provision does not confer the power to override or supersede other
statutes.

{24} An interpretation restricting the authoritative reach of the tolling provision is also
consistent with the official comments that the “article does not purport to alter or modify
in any respect the law on tolling as it now prevails in the various jurisdictions.” Section
55-2-725(4) cmt. (emphasis added). The Uniform Commercial Code as drafted by the
National Conference of Commissioners on Uniform State Laws and the American Law
Institute (the Code) is a collection of proposed model laws designed for application
across state and federal jurisdictions. Here, our Legislature adopted the tolling provision
verbatim without amendment. Compare § 55-2-725(4) (1961) (“This section does not
alter the law on tolling of the statute of limitations nor does it apply to causes of action
which have accrued before this act [this chapter] becomes effective.”), with Uniform
Commercial Code § 2-725, at 263 (1952) (“This section does not alter the law on tolling
of the statute of limitations nor does it apply to causes of action which have accrued
before this Act becomes effective.”). To accept Autovest’s argument is to also support
the notion that the original drafters of the Code intended to override any and all
mandatory provisions related to tolling law in all of the various jurisdictions that have
adopted Subsection (4). We consider that highly unlikely. Autovest points to no history
or comment evincing such an intent. It is more likely that the Code’s drafters intended to
limit the scope of the UCC regarding tolling law to respect the variance in the common
law among jurisdictions.

{25} In the alternative, Autovest asks us to recognize a “common law partial payment
rule.” As the Court of Appeals noted, our courts have not yet recognized a common law
rule. Agosto, 2021-NMCA-053, ¶ 18. However, the COA did not further analyze the
issue because it was not properly before them. Id. Autovest counters that the district
court’s dismissal of its complaint sua sponte deprived it of the opportunity to be heard
on the issue. We conclude that Autovest had ample opportunity to present the issue:
first, in their motion for summary judgment, where Autovest argued that the partial
payment rule revived its claim, and then, in their brief in chief to the Court of Appeals,
where Autovest cited numerous cases grounded in the common law without arguing for
a common law rule. We agree with the judgment of the Court of Appeals that this
question was not properly before it on appeal. Agosto, 2021-NMCA-053, ¶ 18.
Therefore, this Court is precluded from reaching the merits of the issue now. Rule 12-
502(C)(2)(e).

{26} To the extent this remains an open question, we note that New Mexico’s partial
payment doctrine has existed solely in statute. Originally enacted in 1880 by our
territorial legislature, the initial version of Section 37-1-16 did not permit the revival of
claims by partial payment. 1880 N.M. Laws, ch. 5, § 13 (“Causes of action founded
upon contract shall be revived by an admission that the debt is unpaid, as well as by a
new promise to pay the same; but such admission or new promise must be in writing,
signed by the party to be charged therewith.”). It was not until 1957, four years prior to
the adoption of the UCC, that the Legislature added the partial payment term to the
statute. NMSA 1953, § 23-1-16 (1957). Rather than draft a new partial payment
provision outside of the preclusive effect of the exclusion provision, the Legislature
placed the term within the reach of Section 37. We also note that we have uncovered no
case law, nor did Autovest cite any, suggesting that any New Mexico court has ever
recognized the common law partial payment doctrine. Neither can we say that there are
apparent or persuasive justifications for doing so now.
III. POLICY ANALYSIS

{27} Autovest and Amicus raise a policy argument that adopting the chosen language
of the Legislature will force creditors to bring suit after each missed installment
payment, flooding courts with unnecessary litigation. We are unpersuaded that a parade
of horribles results from our interpretation. Rather, the actual consequence of accepting
Autovest’s argument would be to saddle consumers with the risk of zombie debt,
allowing the revival of an otherwise-time-barred debt whenever a debtor makes a partial
payment⸺no matter the minimal amount of the payment or the number of years since
default.

{28} The statute of limitations in a breach of contract action “begins to run from the
time of the breach.” Welty v. W. Bank of Las Cruces, 1987-NMSC-066, ¶ 8, 106 N.M.
126, 740 P.2d 120. Installment contracts require continuous performance, so that partial
breaches may occur with each missed payment. Restatement (Second) of Contracts §
243 cmt. c. (Am. L. Inst. 1981) (“[A] breach as to any number less than the whole of
such installments gives rise to a claim merely for damages for partial breach.”). With
each partial breach, a new statute of limitations begins to run. Welty, 1987-NMSC-066,
¶ 9 (“[U]nder contract obligations payable by installments, the statute [of limitations]
would have begun to run only with respect to each installment when due.”) Autovest and
Amicus argue that recovery of missed payments would require separate lawsuits
against a consumer after each breach.

{29} Autovest’s rationale is not incorrect as much as incomplete. Installment contracts
for cars create a security interest in the item being purchased. See generally NMSA
1978, § 58-19-2(F) (2019) (defining a retail installment contract as “an agreement . . .
pursuant to which the title to or a lien upon the motor vehicle that is the subject matter of
a retail installment transaction is retained or taken by a retail seller from a retail buyer as
security for the buyer’s obligation”). As in this case, the agreement typically includes an
acceleration provision allowing the lender to require immediate and full payment of the
balance, including the right to repossess the car. See NMSA 1978, § 55-9-623 cmt. 2
(2001) (explaining that when “the entire balance of a secured obligation has been
accelerated,” redemption of the collateral requires “payment in full of all monetary
obligations”). The lender-creditor may do so without any notice to the consumer. NMSA
1978, § 55-9-609(a)(1), (b)(2) (2001) (“After default, a secured party . . . may take
possession of the collateral . . . and may proceed . . . without judicial process, if it
proceeds without breach of the peace.”). Once the acceleration clause is invoked, the
limitation period will begin “with respect to the whole indebtedness only from the date of
an exercise of the option to declare the whole indebtedness due.” Welty, 1987-NMSC-
066, ¶ 9 (emphasis added); see also LSF9 Master Participation Tr. v. Sanchez, 2019-
NMCA-055, ¶ 12, 450 P.3d 413 (same); 51 Am. Jur. 2d Limitations of Actions § 146
(2011) (“Thus, even if a [debt] is payable in installments, once [the] debt is accelerated,
the entire amount is due, and the statute of limitations begins to run on the entire
debt.”).

{30} In practice, when the creditor invokes the acceleration clause to demand the
remaining balance of the loan, a new statute of limitations starts to run. This limitation
period is separate from the ones accruing with each missed installment payment. Thus,
the creditors would not have to bring an action for each missed payment.

{31} The UCC also provides an avenue that avoids the flood of unnecessary litigation
forecasted by Autovest. The UCC allows parties to modify an agreement without
consideration, establishing a new agreement that has not yet been breached. NMSA
1978, § 55-2-209(1) (1961, amended 2023). Therefore, creditors may request a signed,
informed consent from the buyer to establish a new statute of limitations. 9 Why would a
buyer agree? Because the creditor has the leverage of the acceleration provision, which
includes repossession of the car.

{32} With these mechanisms already in place, it is of little surprise that Autovest and
Amicus cite no examples of a parade of horribles in this jurisdiction or others. If we were
to adopt Autovest’s interpretation, the actual sea change would occur in the time period
after the acceleration provision has been invoked. As described above, once the
acceleration provision is exercised, the creditor has four years in which to file an action
to recover any deficiency, marking the end of the story for the consumer. Under
Autovest’s proposed statutory regime, whenever a creditor convinces a consumer to
pay any minimal amount towards a deficiency for a sale of goods, the four-year clock
would restart, regardless of whether the debt is time-barred. Davis v. Savage, 1946-
NMSC-011, ¶ 28, 50 N.M. 30, 168 P.2d 851 (“In considering the revival of causes of
action upon the indebtedness by acknowledgment that the debt is unpaid, or the
promise to pay the same, it is generally regarded as immaterial whether the
acknowledgment precedes or follows the bar.”); Lea Cnty. State Bank v. Markum Ranch
P’ship, 2015-NMCA-026, ¶ 11, 344 P.3d 1089 (“[O]ur case law and other legal
authorities are clear that revival works to restart the running of the statute of limitations
before, as well as after, the statute of limitations has expired.” (footnote and internal
quotation marks omitted)).

{33} This outcome is irreconcilable with the Legislature’s stated intent. Once again,
the official comments provide supportive guidance. See State ex rel. King v. B & B Inv.
Grp., Inc., 2014-NMSC-024, ¶ 41, 329 P.3d 658 (examining the UCC’s official
comments to discern the legislative intent in drafting NMSA 1978, Section 55-2-302
(1961)). The UCC’s official comments state that “[t]his article . . . selects a four year
period as the most appropriate to modern business practice. This is within the normal
commercial record keeping period.” Section 55-2-725 cmt. Allowing for zombie debt
would upend the four-year limitation, permitting forever-revival of claims if a debtor
attempts to repay any minimal amount towards the deficiency.

{34} It is not the purview of this Court to stop a bad deal; individuals are responsible
for their own decisions. Armstrong v. Csurilla, 1991-NMSC-081, ¶ 48, 112 N.M. 579,
817 P.2d 1221 (“It is not the function of courts to remake bad contracts that competent
parties voluntarily make for themselves. It is the function of courts to right wrongs and

9Section 55-2-725(1) states that the “original agreement” may not have a limitation period for a breach of
contract that is less than one year or greater than four. This does not appear to preclude a party from
establishing a new agreement that has the effect of extending the statute of limitations beyond the date of
the first agreement’s four-year limitation period.
correct injustices by applying legal rules and principles . . . .”). But absent a command
from the Legislature, a person should not have to submit to perpetual debt for the
mistake of purchasing a car under less-than-desirable terms. The plain and fair reading
of the statutes supports this principle.

IV. CONCLUSION

{35} We hold that Section 37-1-16’s partial payment rule does not override or
otherwise supersede the mandatory terms of the exclusion provision. We, therefore,
affirm the Court of Appeals and remand each case to its respective district court to
amend the judgment consistent with our holdings.

{36} IT IS SO ORDERED.

DAVID K. THOMSON, Chief Justice

WE CONCUR:

MICHAEL E. VIGIL, Justice

C. SHANNON BACON, Justice

BRIANA H. ZAMORA, Justice

ERIN B. O’CONNELL, Judge
Sitting by designation